Pimp appeals conviction to N.H. Supreme Court

Sunday

Jan 19, 2014 at 2:00 AMJan 19, 2014 at 12:15 PM

A pimp who arranged for a 16-year-old runaway to work as a prostitute at Portsmouth motels claims his three prostitution convictions were based on errors of law made by a Rockingham Superior Court judge.

Elizabeth Dinan

A pimp who arranged for a 16-year-old runaway to work as a prostitute at Portsmouth motels claims his three prostitution convictions were based on errors of law made by a Rockingham Superior Court judge.

Now serving a 2- to 4-year state prison sentence, Jean Payoute, 25, of Hyde Park, Mass., is appealing his prostitution convictions to the state Supreme Court, claiming in part that the charges against him should have been dismissed because there was a lack of evidence.

Through appellate defender Thomas Barnard, Payoute also claims the jury that found him guilty should not have been allowed to hear testimony from the 16-year-old prostitute's mother, who said at trial that her daughter was afraid to testify because she feared being hurt or killed.

Payoute lastly argues the jury should not have been allowed to hear evidence that he used a pre-paid credit card to buy 70 online ads for prostitutes because none of those listings advertised the 16-year-old, who is identified in court records as "KS."

Defending the convictions for the state is Assistant Attorney General Nicholas Cort.

Both sides agree the case began in October 2010 when KS's mother found ads on the Web site Backpage.com with photos of her teenage daughter depicted as a prostitute and working in Portsmouth under the names "Honey," "Mama Italian," "Candy" and "Baby Girl-20."

One of the ads read, "Warning guys, Honey is a 16-year-old runaway with your pimp" and listed KS's cellphone number, according to court records.

One man who called KS's number was an undercover Kittery, Maine, police detective, brought in by Portsmouth police for a sting, court records state. On Oct. 22, 2010, he arranged to meet KS in the Portsmouth motel room where she was staying and the teenager took $250 in exchange for the promise of sex, court records state. The detective gave an "arrest signal" and police arrested the teen on a warrant, Supreme Court records state.

Police collected evidence at that and a second motel room where the teen had stayed the prior night, before arresting Payoute's co-defendant, Wayne Miller, also of Massachusetts. Payoute was arrested May 10, 2011, and while he was being booked he told Portsmouth police Detective Rebecca Hester, "all you can prove is that I knew her," according to court records.

Miller later agreed to testify against Payoute in exchange for immunity, legal briefs concur.

When the case went to trial last year, KS didn't appear. Instead, her mother took the witness stand and said her daughter was afraid to testify "against the people she was escorting for, prostituting for" because if she did, someone would "come after" her and hurt or kill her, court records state.

Payoute was found guilty by a jury of three counts of prostitution and was sentenced by Rockingham Superior Court Judge Marguerite Wageling to 2 to 4 years in prison, followed by a suspended sentence of the same length. His public defender now calls the state's case circumstantial, claims evidence was insufficient to convict Payoute and claims that Miller was the teen's sole pimp, but made Payoute "a scapegoat."

One of the questions the Supreme Court is being asked to decide in Payoute's appeal is whether the trial court judge erred by allowing KS's mother to testify about her daughter's fear of being hurt or killed.

Payoute's lawyer argues that legal rules bar the "use of a statement of belief to prove the fact believed." Therefore, he tells the Supreme Court in his legal brief, the trial court erred by allowing the hearsay statement by KS's mother.

Payoute's lawyer further argues that KS didn't allege any specific threat made by Payoute so the jury shouldn't have heard about it. He tells the state's highest court that all evidence must be relevant and admissible, so the Supreme Court should reverse the lower court's decision to allow that testimony.

Assistant Attorney General Cort counters in his Supreme Court brief that the testimony was an allowed exception to hearsay rules and admissible because it showed the teen's "state of mind." Cort tells the Supreme Court that Payoute's lawyer told the jury during an opening remarks that the jury wouldn't hear from KS and it was "troubling" because "we don't know if she's really a victim."

"Thus, the disputed evidence was necessary to explain her state of mind, which in turn explained her absence from the trial," according to Cort's brief.

The Supreme Court is also asked to rule whether Judge Wageling erred by allowing evidence to be presented to the jury about Payoute's use of a "Green Dot" pre-paid credit card to buy 70 Backpage.com ads for prostitution services that were unrelated to ads involving KS. Payoute's lawyer argues the evidence was irrelevant because it was from 2009, not 2010 when the crimes occurred for which he was convicted.

Cort claims the evidence was relevant as it proved Payoute was familiar with the backpage Web site and the procedure for posting on it. Barnard tells the Supreme Court that even though Payoute's name and address were used to post several ads involving KS, it was possible someone else used his name and address without his knowledge. Cort counters that the ads were placed by Payoute, or at his direction, and even if the lower court erred by allowing the evidence, it was harmless.

Lastly, the Supreme Court is asked to decide if the trial court erred by denying a motion to dismiss the charges against Payoute due to insufficient evidence. According to Barnard, there was no evidence presented at trial directly linking Payoute to the prostitution ads KS appeared in and no paper trail between him and any credit card. Therefore, he argues, the Supreme Court must vacate Payoute's convictions.

Cort counters that a witness description proved Payoute checked KS into the motel on Oct 21 using an ID card with Miller's name. A "large amount of circumstantial evidence" supported the case, Cort argues, including evidence from KS's cellphone and online ads with KS's picture and Payoute's name and address listed as the "user."

The case is scheduled to be argued before a three-judge Supreme Court panel, known as 3JX, on Jan. 23.

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